United States of America v. Dan Charles Tompkins

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAN CHARLES TOMPKINS,
Defendant - Appellant.
No. 09-30079
D.C. No. 1:07-CR-30034-PA
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted February 2, 2010
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Dan Tompkins appeals the district court’s application of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), in sentencing Tompkins following
his jury conviction of one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). We affirm.
FILED
FEB 09 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
The district court correctly concluded that Tompkins is an armed career
criminal because he has at least three previous convictions for violent felonies
under the ACCA. See 18 U.S.C. § 924(e)(1). Tompkins admits that he has one
qualifying prior conviction, but argues that his burglary convictions do not qualify
as violent felonies. Because we find that his previous burglary convictions qualify
as two separate offenses under the ACCA, we need not reach the issue of whether
his prior convictions for escape and attempt to elude qualify as violent felonies
under the ACCA.
The ACCA includes in its definition of “violent felony” any crime that “is
burglary, arson, or extortion, involves the use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii). Tompkins was convicted of two counts of burglary
under the Oklahoma burglary statute, OKLA. STAT. tit. 21, § 1435. Because the
Oklahoma burglary statute is broader than the generic definition of burglary, it
cannot fall categorically within the ACCA’s definition of burglary. See Taylor v.
United States, 495 U.S. 575, 599 (1990). Under the modified categorical approach,
however, Tompkins’s convictions qualify as violent felonies. The Information, a
charging document, alleged each element of generic burglary by stating that
Tompkins “unlawfully” entered with “burglarious intent” into a “certain building”

-- 2 of 4 --

3
located at a specific address and owned by a particular business. See Shepard v.
United States, 544 U.S. 13, 26 (2005) (listing charging documents and terms of a
plea agreement as documents the court reviews under the modified categorical
approach); see also Taylor, 495 U.S. at 599 (listing the three elements of generic
burglary). He admitted the necessary elements of generic burglary by pleading
guilty. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005)
(“By pleading guilty, [defendant] admitted the factual allegations in the
indictment.”).
The ACCA requires offenses to be “committed on occasions different from
one another” in order to count toward the three offenses needed for an enhanced
sentence. 18 U.S.C. § 924(e)(1). “The rule is that offenses that are temporally
distinct constitute separate predicate offenses, even if committed within hours of
each other, similar in nature, and consolidated for trial or sentencing.” United
States v. Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998) (brackets omitted).
Offenses are “temporally distinct” when they occur at different times, in different
locations, and involve different victims. Id. Even though Tompkins’s burglary
convictions were similar in nature and occurred on the same day, his Information
listed two separate burglary counts with separate addresses belonging to two
different victims. He was sentenced in separate judgment orders to consecutive

-- 3 of 4 --

4
five-year prison terms. Together, these factors establish that Tompkins’s
burglaries were temporally distinct and count separately under the ACCA.
AFFIRMED.

-- 4 of 4 --